There has been a great deal of discussion around returning employees to the workplace now that many of the COVID-19 restrictions have lifted, and the extent to which an employer can insist that an employee works from the workplace after an (extended) period of working from home.
Generally speaking, employers can enforce a requirement for employees to return to the workplace if either:
- it is a lawful and reasonable direction (in all of the circumstances); or
- working from the employer’s premises is an inherent requirement of the employee’s role.
This issue has now been specifically considered in a recent unfair dismissal application heard by the Fair Work Commission (FWC).
Background
The Applicant had been employed by the Australian Federal Police (AFP) since around 2010. Prior to the COVID-19 lockdowns and the AFP instituting working from home arrangements, the Applicant had provided medical evidence to the AFP as to the kind of workstation he required due to his health issues, which included the possibility of working flexibly from his home. However, this request was not directly acted upon by the AFP as the Applicant instead commenced working from home in or around March 2020 due to the COVID-19 lockdowns. The Applicant continued to work from home even after lockdowns lifted without an authorised flexible work arrangement being in place.
The AFP attempted to contact the Applicant on multiple occasions to discuss his return to work, reasonable adjustments, and possible work arrangements. Instead of meeting with the AFP, the Applicant instead relied on the medical letter he had previously provided and continued to work from home. The AFP then formally directed the Applicant to return to the workplace and repeated this request on multiple occasions. When the Applicant failed to comply with the direction, the AFP terminated the employment due to the Applicant’s failure ‘to comply with a reasonable and lawful direction’.
Decision
Deputy President Dean found that the direction was indeed ‘reasonable’ and ‘lawful’ and that the Applicant’s failure to comply with such a direction formed a valid reason for dismissal. In particular, the AFP had provided evidence of the legitimate reasons why it required the Applicant to return to the workplace, including that:
- the Applicant had taken periods of personal leave for an extended period of time and the AFP wanted to integrate him back into work;
- several unsuccessful attempts had been made to discuss the Applicant’s capacity for work and help him to get a workplace rehabilitation provider;
- the AFP had requested current medical evidence about the duties the Applicant could perform so that reasonable adjustments could be made;
- the AFP wanted the Applicant to receive training in new systems used by his team; and
- the AFP wanted the Applicant to attend team and other meetings and better understand the team and its organisational priorities, as well as for the Applicant to receive the support he needed to perform his role.
The AFP had also made it clear that the Applicant would be permitted to work from home, just not on a full-time basis.
Her Honour found that the AFP had a ‘sound and defensible’ reason to dismiss the Applicant. She also found that the AFP had followed a procedurally fair process (noting that it had engaged in a very thorough written process with the affected employee). The unfair dismissal application was dismissed.
Key Takeaway
While it is important to remember that employers may be under a legal obligation to consider a request to work flexibly, including from home – the key message from this decision is that where those arrangements are not in place, an employer will be well-positioned to defend an unfair dismissal relating to a requirement to return to the workplace where:
- its direction is based on legitimate requirements (which it can specifically identify); and
- the employee refuses to comply with its directions, provided that
- the employer has provided the employee with a procedurally fair process (which will necessarily include advising the employee that a refusal to comply with the direction may result in their dismissal and that the employee is provided with an opportunity to respond to the reason for termination).
Accordingly, it is a good idea for employers to consider and document the reasons why an employee needs to work from the office.
If you are an employer with any questions about returning your employees to the workplace, feel free to reach out to one of our team on (03) 9448 9600.
The above is general information and should not be taken as legal advice.
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